Questions on Fair Sentencing Act Retroactivity

If you were sentenced for a crack cocaine offense committed before August 3, 2010, you may be able to ask the judge for a shorter sentence. Section 404 of the First Step Act of 2018 lets courts apply the Fair Sentencing Act of 2010, which raised the crack amounts that trigger the harshest penalties, to those older sentences. First Step Act § 404(a)–(b). A reduction is not automatic, and you generally get one full chance, so the motion needs to be done right.

Update (October 2026): Since this FAQ was first written, the Supreme Court has settled several questions. A crack conviction under 21 U.S.C. § 841(b)(1)(C), which has no mandatory minimum, does not qualify. Terry v. United States, No. 20-5904 (U.S. June 14, 2021). And judges deciding these motions may consider changes in law and facts since the original sentence. Concepcion v. United States, No. 20-1650 (U.S. June 27, 2022). The answers below reflect those decisions.

Be careful who you take advice from. Since the First Step Act passed, many people inside and outside prison have started selling help with these motions. That is dangerous when the person giving "advice" does not know what they are talking about. Bad advice can cost you money or commissary, and it can cost you your chance at freedom.

If you might benefit, make sure your motion is put together right. Ask questions, and insist on clear answers. The questions below are the ones we hear most often.

Common questions about Fair Sentencing Act retroactivity

1. What law do I file under?

The right to ask for a reduction comes from Section 404 of the First Step Act. It says:

A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was committed.

Many courts treat 18 U.S.C. § 3582(c)(1)(B) as the procedural "vehicle" for the motion. That statute lets a court change a sentence when another statute "expressly" allows it, and Section 404 does. See United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019). So cite Section 404 as your authority. You can cite § 3582(c)(1)(B) too.

When this FAQ was first written in 2018, many people were saying a "3582 motion" was the right way to file. The original article pushed back hard on that, and its main point still stands: the source of your right to relief is Section 404, not § 3582(c)(1)(B). Its reasoning:

• Section 3582(c)(1)(B) is a limiting statute. It says a court "may not modify a term of imprisonment once it has been imposed" except "to the extent otherwise expressly permitted by statute or by Rule 35." It restricts a court's power. It does not create a new right.
• Section 404 is the statute that "expressly permits" the change. So § 3582(c)(1)(B) does not bar a Section 404 reduction.
• Section 3582(c)(1)(B) does not even use the word "motion." Section 404 does.
• If § 3582(c)(1)(B) were the source of relief, you would use it for every request to cut a sentence. You would not need a § 2255 motion, for example. That makes no sense. Why should a Section 404 motion be different? Reading it that way would ignore the specific words Congress used in the First Step Act.
• Courts have treated § 3582 motions as limited in scope. The language of Section 404 is broad. There is no reason to narrow the court's power by forcing the motion into § 3582 when another statute gives broader authority.

Note (October 2026): Courts have since settled on treating § 3582(c)(1)(B) as the procedural vehicle while Section 404 supplies the authority. Wirsing, above. And in Concepcion, the Supreme Court confirmed that judges have broad discretion in Section 404 cases. So the original article's practical point holds: rely on Section 404.

2. What should I call my motion?

There is no required title. A simple one works: "Motion for Reduction in Sentence Under Section 404 of the First Step Act of 2018." The opening might read:

Defendant, JOHN DOE, respectfully moves for a reduction in his/her sentence pursuant to Section 404 of the First Step Act of 2018 ("FSA 2018"). The FSA 2018 expressly makes the Fair Sentencing Act of 2010 retroactively applicable, and authorizes district courts to reduce a "sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was committed." Accordingly, for the reasons and arguments herein, the Court should reduce Doe's sentence to _________________.

3. How do I know if this applies to me?

You need a "covered offense." In plain terms, all of these must be true:

• You were convicted of a crack cocaine ("cocaine base") offense whose penalties the Fair Sentencing Act changed. That mainly means 21 U.S.C. § 841(b)(1)(A) or (B), the matching import/export penalties, or simple possession of crack under 21 U.S.C. § 844(a). A crack conviction under § 841(b)(1)(C), which has no mandatory minimum, does not qualify. Terry.
• The offense was committed before August 3, 2010, when the Fair Sentencing Act took effect.
• Your sentence was not already imposed or reduced under the Fair Sentencing Act. People sentenced after August 3, 2010, usually got the new law already. Dorsey v. United States, 567 U.S. 260 (2012).
• You did not already file a Section 404 motion that was denied on the merits.

Meeting these conditions makes you eligible to ask. Whether a reduction actually helps you depends on fine details, so start with what the Fair Sentencing Act changed. It raised the amount of crack needed to trigger the higher penalties. Before, the law treated 1 gram of crack like 100 grams of powder. After, the ratio was about 18 to 1.

Title 21 U.S.C. § 841 has three main penalty levels:

• § 841(b)(1)(A): 10 years to life. At the time, one qualifying prior conviction raised the minimum to 20 years, and two raised it to mandatory life, if the government filed a notice under 21 U.S.C. § 851.
• § 841(b)(1)(B): 5 to 40 years. One properly noticed prior raises it to 10 years to life.
• § 841(b)(1)(C): 0 to 20 years. A properly noticed prior raises the maximum to 30 years.

Note: Section 401 of the First Step Act later lowered the § 851 enhanced minimums in (b)(1)(A) to 15 and 25 years. That change is not retroactive, so the examples below use the old numbers. Under Concepcion, a judge may still consider it when deciding how much to reduce.

The Fair Sentencing Act did not change § 841(b)(1)(C). It changed the crack amounts for (A) and (B):

Crack amounts before the Fair Sentencing Act

• § 841(b)(1)(A): 50 grams or more of crack
• § 841(b)(1)(B): 5 grams or more of crack

Crack amounts after the Fair Sentencing Act

• § 841(b)(1)(A): 280 grams or more of crack
• § 841(b)(1)(B): 28 grams or more of crack

There are many ways a person can benefit. Here are three examples. They do not cover every situation.

Example one: a 5-gram plea

In 2008, the defendant pleaded guilty to an offense involving 5 or more grams of crack. He never admitted a larger amount. There was no § 851 notice. His range then was 5 to 40 years. Today, 5 grams is less than the 28 grams needed for (b)(1)(B), so the range is 0 to 20 years under (b)(1)(C).

Example two: mandatory life after a jury trial

In 2004, a jury convicted the defendant of a crack conspiracy under 21 U.S.C. § 846. The indictment charged 50 grams or more. The government filed a § 851 notice listing two priors. The jury made no finding on amount. He got mandatory life. Today, 50 grams falls under (b)(1)(B), and with a prior the range is 10 years to life. He can ask the court to reduce the life sentence, as low as the 10-year minimum.

Example three: a career offender

In 2007, the defendant pleaded guilty under § 841(b)(1)(A). The indictment charged 50 grams or more, and he admitted no more than that. There was no § 851 notice, but he was a "career offender," a Guidelines label for people with certain prior convictions. At sentencing, the judge found by a "preponderance of the evidence" (more likely than not) that the case involved 100 grams. The career offender guideline set a higher offense level, 37, than the drug amount did, so it controlled.

Under the Fair Sentencing Act, the career offender guideline still controls. But the statutory maximum drops from life under (b)(1)(A) to 40 years under (b)(1)(B). That lowers the career offender offense level from 37 to 34. He should be able to ask for a reduction.

4. I do not have a crack cocaine offense. Can I benefit?

No. Section 404's use of the Fair Sentencing Act is strictly limited to people convicted of crack offenses whose penalties the Fair Sentencing Act changed.

5. What if my case involved crack and another drug?

It depends on the amounts. Suppose the indictment charged 50 grams or more of crack and 5 kilograms or more of powder cocaine, and you were sentenced on those amounts. The 5 kilograms of powder still triggers (b)(1)(A) on its own. So the change in the crack law would not lower your range. Talk to a lawyer about whether the offense still counts as "covered," because courts have looked at this question closely.

6. What if I admitted, or the judge found, a large amount of crack?

Eligibility turns on the offense you were convicted of, not the amount found later. In Wirsing, for example, the Fourth Circuit held that people serving sentences for § 841(b)(1)(A)(iii) and (B)(iii) crack offenses are eligible to file, unless Section 404(c) bars them.

But the amount still matters. If you admitted, or a judge found, more than 280 grams, the judge may decide a reduction is not warranted. Under Concepcion, the judge must recalculate the guideline range only as if the Fair Sentencing Act had applied, then may weigh everything else.

Correction (October 2026): The original version of this FAQ said that if you admitted more than 280 grams of crack in your plea, you would likely be ineligible, because facts you admit in a plea can trigger higher minimums and maximums. Courts have since held that eligibility depends on the statute of conviction, not the amount. Terry; Wirsing. Facts you admitted still count when the judge decides whether, and how much, to reduce.

7. I did not admit any drug amounts. All the drugs in my case were "relevant conduct" ("ghost dope"). Can I benefit?

The original version of this FAQ called this an interesting legal issue that would get a lot of attention. Here is why. A judge cannot find facts that raise your mandatory minimum or your statutory maximum. Those facts must be admitted or found by a jury. Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013).

The original article made these arguments:

• Sentenced after Apprendi (2000). If all the drug amounts in your case were found by the judge by a preponderance of the evidence, the court should be bound by Apprendi when it looks at the effect of the Fair Sentencing Act. In other words, the court should not use judge-found amounts to deny a lower statutory maximum you would otherwise get.
• Sentenced before Apprendi. Some courts may say you cannot "backdoor" an Apprendi argument to get the new maximums. But Section 404 is written broadly. With good lawyering, a court might be convinced that Apprendi can apply even if you were sentenced before it was decided.
• Alleyne. Alleyne covers facts that raise the mandatory minimum. It was decided in 2013 and is not retroactive. But there are arguments that it should apply when a court decides a Section 404 motion. If it does, the judge could not use judge-found facts to decide which new minimum applies. The court would look only at the charging document and what you pleaded guilty to or what the jury found.

Note (October 2026): After Terry, eligibility turns on the statute of conviction, so judge-found amounts do not by themselves make you ineligible. Whether Apprendi and Alleyne control the new statutory range in a Section 404 case is a separate question, and courts have not all agreed. Under Concepcion, a judge may consider these arguments but does not have to accept them. Talk to a lawyer about how courts in your circuit handle it.

8. My sentence is above what the law now allows. Does the court have to reduce it?

No. Section 404(c) says nothing in it "shall be construed to require a court to reduce any sentence." In Concepcion, the Supreme Court said the judge must consider your non-frivolous arguments but does not have to agree with them.

That is why a careful, complete motion matters. Do not file a fill-in-the-blank form motion. The judge needs to know who you are, what you have done in prison, and your plan for release. Letters from family and friends help. People have lost these motions because they treated relief as automatic. The original author saw the same thing happen with Amendment 782 (the 2014 drug guideline cut): several people were denied because their public defender, or the person themselves, assumed the reduction would follow on its own. Do not fall into that trap.

A strong motion usually includes:

• the judgment, the docket number, and the statute of conviction, with the old and new penalty ranges side by side;
• the recalculated guideline range;
• the BOP (Bureau of Prisons) disciplinary record, education and work history, and any program certificates;
• a release plan showing where you will live and work; and
• letters from family, friends, and possible employers.

There is also an argument that a reduction should be required when a sentence is above the new statutory maximum. Section 404 itself may not require a reduction, but it does not cancel other law, from statutes or court decisions, that treats a sentence above the statutory maximum as unlawful. Working through these issues takes a persuasive advocate, so be careful about who you deal with.

9. If I am denied, can I file again later?

Usually not. Section 404(c) says:

No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits.

Section 404(c) bars a second Section 404 motion after an earlier one was denied after a complete review on the merits. That review is the district court's own decision on the merits; an appeal is not needed for the bar to apply. So if the district court denies your motion, that may be your only chance under this law. Do not count on a second motion.

If your motion is denied, look at an appeal right away. In a criminal case, the deadline to file a notice of appeal is usually just 14 days. Fed. R. App. P. 4(b)(1)(A).

What to do next

These motions have many details, and this FAQ cannot cover every situation. Use it as a starting guide. While you are deciding, keep the facts of your case off recorded prison phones and TRULINCS email.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.